WALTER v. RUNDFUNK

BEATE WALTER, Plaintiff, -against- WESTDEUTSCHER RUNDFUNK, ARD GERMAN RADIO NEW YORK Defendant

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT ANDRECOMMENDATION

The plaintiff in this case, Beate Walter, commenced this employment
discrimination action against Westdeutscher Rundfunk, ARD German Radio
New York ("Westdeutscher") pursuant to Title VII of the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., the New York State
Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 296 et seq., and the
New York City Human Rights Law (the "NYCHRL"), N.Y. City Admin. Code §
8-101 et seq. She claims that Westdeutscher, her former employer,
discriminated against her and discharged her on the basis of her sex and
disability and in retaliation for complaints she had previously filed.
Westdeutscher has moved to dismiss the Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, claiming that the plaintiff has
failed to state a claim upon which relief can be granted. For the reasons that follow, I recommend that the defendant's
motion be granted in part and denied in part.

Background

Ms. Walter was employed by Westdeutscher as a radio producer from
September 1999 through February 15, 2002. (Complaint ("Compl."), ¶¶ 7,
35). Ms. Walter is a German citizen but was living in New York during the
time she was employed by Westdeutscher. (Compl., ¶ 4). During the course
of her employment there, Thomas Nehls was Ms. Walter's immediate
supervisor. (Compl., ¶ 9). According to Ms. Walter, Mr. Nehls began
bringing her gifts during the spring of 2000. (Compl., ¶ 13). In April
of that year, Mr. Nehls invited Ms. Walter to join him at an affair at
the United Nations, but Ms. Walter declined. Ms. Walter claims that after
she refused his invitation, Mr. Nehls began criticizing her and giving
her "new orders, which were sometimes conflicting or incomprehensible."
(Compl., ¶¶ 14, 15). According to Ms. Walter, Mr. Nehls began "harassing"
her about her visa, claiming that it was expired. When she presented him
with a new visa, he told her that it "looked fake and [she should] get a
better one." (Compl., ¶ 16). Because of Mr. Nehls' conduct, Ms. Walter
informed him that she would be returning to Germany in September 2000, at
which point Mr. Nehls "begged her to stay asserting that he could not do without her and he
needed her." (Compl., ¶ 17). When Ms. Walter agreed to stay, Mr. Nehls
offered her a contract as a full time producer. (Compl., ¶ 17). Ms.
Walter alleges that on October 30, 2000, Mr. Nehls terminated her for
having an expired visa, giving her six weeks notice as was required by
her contract. (Compl., ¶ 18). Although Mr. Nehls cited the missing
visa, Ms. Walter also claims that he told her that he had fired her
because she had complained about him. (Compl., ¶ 18). Ms. Walter
contends that after she told Mr. Nehls' editor-in-chief, Helga Kirchner,
and a supervisor, Joerg Kaminski, about her termination, she later
overheard Mr. Nehls "slandering her." (Compl., ¶¶ 19, 20). Mr. Nehls
subsequently convened a meeting with Ms. Walter, Westdeutscher
correspondent Carsten Vick, and another producer, at which he "berated
Ms. Walter for not adhering to the proper [Westdeutscher] hierarchies
when filing a complaint." (Compl., ¶ 21). Ms. Walter alleges that
notwithstanding this criticsm, Mr. Nehls also told her that her
"complaints would end up in his waste paper basket." (Compl., ¶ 21). On
December 15, 2000, the day Ms. Walter believed was her final day of
work, Mr. Nehls told her that her termination was a joke, and that she
was expected to be at work the following Monday. (Compl, ¶ 22). During the summer of 2001, Ms. Walter claims that she went into Mr.
Nehls' office to have some papers signed and found him "rubbing his
genitals" while talking on the phone. According to Ms. Walter, he
continued to rub himself while she was standing in front of him.
(Compl., ¶ 23). The plaintiff contends that by November 2001, her health
began to suffer due to "Mr. Nehls' daily harassment." (Compl., ¶ 24).
She claims that on November 27, 2001, following an incident of harassment
by Mr. Nehls, she developed chest pains, accompanied by pain and numbness
in her left shoulder, arm, and leg. (Compl., ¶ 26). This condition
returned on November 30, 2001, and Ms. Walter was admitted to the
emergency room at Beth Israel Medical Center. Both times, she was told by
doctors that the condition was stress related. (Compl., ¶¶ 27, 28).
According to Ms. Walter, Mr. Nehls made "negative references" about her
various health problems and indicated that they could result in the loss
of her job. (Compl., ¶ 25).

On December 27, 2001, Mr. Nehls terminated Ms. Walter. He told her that
the reason for her termination was "the alleged contempt for mankind and
coldness that [she] emanates at the office," and he informed her that
fellow employees refused to work with her. (Compl., ¶¶ 30, 31). He
did, however, offer her an opportunity to resign, rather than be terminated. (Compl., ¶
31). On December 28, Mr. Nehls gave Ms. Walter a written notice of
termination. (Compl., ¶ 32). On January 24, 2002, Ms. Walter saw a
neurologist regarding "persistent pins and needles sensation and
reoccurring numbness." Her condition was found to be related to stress
and anxiety, and Ms. Walter was placed on medication (Compl., ¶¶ 33,
34). The plaintiff's last day of work was February 15, 2002. She contends
that following her termination, Mr. Nehls refused to sign references for
her to confirm her employment. (Compl., ¶ 35).

On July 26, 2002, Ms. Walter filed a formal charge of employment
discrimination with the Equal Employment Opportunity Commission, and on
May 29, 2003, she received a right-to-sue letter entitling her to
commence a civil action under Title VII. (Compl., ¶ 6., Exh. A;
Memorandum of Law in Support of Pre-Answer Motion Pursuant to
Fed.R.Civ.P. 12(b)(6) to Dismiss Plaintiff's Complaint ("Def. Memo.") at
2-3).

Discussion

A. Standard for a Motion to Dismiss

In considering a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the court must accept as true all
factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993);
Freedom Holdings, Inc. v. Spitzer, 363 F.3d 149, 151 (2d Cir. 2004);
Hernandez v. Coucrhlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, a
complaint may not be dismissed "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(footnote omitted). These principles are even more strictly applied where
the plaintiff alleges civil rights violations. Leather v. Ten Eyck,
180 F.3d 420, 423 (2d Cir. 1999); Hernandez, 18 F.3d at 136. A complaint
need only provide "a short and plain statement of the claim showing that
the pleader is entitled to relief." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)). A motion to
dismiss may be granted "only if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the
allegations." Id. at 514 (internal quotation marks and citation
omitted).

B. Gender Claims

Ms. Walter alleges that Westdeutscher violated Title VII and the NYSHRL
when it "engaged in an unlawful employment practice" by "terminating and otherwise discriminating against Plaintiff because of
her sex (sexual harassment)." (Compl., ¶¶ 37, 41). She further claims that
the defendant discriminated against her because of her gender in
violation of the NYCHRL. (Compl., ¶ 47).

1. Gender Discrimination

Title VII prohibits discriminatory employment practices on the basis of
gender and other impermissible classifications. See
42 U.S.C. § 2000e-2(a)(1). To state a prima facie case of gender
discrimination under Title VII, a plaintiff must show (1) that she was a
member of a protected group; (2) that she was qualified for the job in
question; (3) that the defendant took an adverse employment action
against her; and (4) that the circumstances support an inference of
discrimination on the basis of her membership in that protected class.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (footnote
omitted); Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir.
2000).*fn1 "A plaintiff may raise such an inference [of discrimination]
by showing that the employer subjected him to disparate treatment, that is,
treated him less favorably than a similarly situated employee outside his
protected group." Graham, 230 F.3d at 39 (citations omitted).

While a plaintiff need not plead every element of a prima facie case in
order to survive a motion to dismiss, she must provide fair notice to the
defendant of her claim and allege some facts on which "relief could be
granted . . . consistent with the allegations." Swierkiewicz, 534 U.S. at
514 (citation omitted); Timothy v. Our Lady of Mercy Medical Center, No.
03 Civ. 3556, 2004 WL 503760 at *5 (S.D.N.Y. March 12, 2004). Here, Ms.
Walter has not given the defendant "fair notice" of what her gender
discrimination claim entails nor has she alleged even minimal facts upon
which relief could be granted.

Ms. Walter makes no allegations that her termination was based on
gender, apart from the quid pro quo sexual harassment claim which will be
addressed below. She has not claimed that Mr. Nehls treated female
employees differently from male employees, nor has she claimed that
benefits were denied to her because she was female. Rather, Ms. Walter
has described several instances where she and Mr. Nehls had conflicts and
asserts that as a result of these conflicts, she was terminated. The only allegation Ms. Walter makes that in any way relates to Mr. Nehls'
treatment of women in general is her assertion that on "numerous
occasions, Mr. Nehls introduced Ms. Walter and her colleague, a female
producer, as his secretaries." (Compl., ¶ 12). The remainder of the facts
Ms. Walter describes involve altercations she had with Mr. Nehls and
their mercurial working relationship. While Title VII prohibits
discrimination, "it is not a shield against harsh treatment at the work
place. Personal animosity is not the equivalent of sex discrimination and
is not proscribed by Title VII. The plaintiff cannot turn a personal feud
into a sex discrimination case by accusation." McCollum v. Bolger,
794 F.2d 602, 610 (11th Cir. 1986) (footnotes, quotation marks, and
citations omitted); accord Cooperman v. Solil Management, Inc., No. 98
Civ. 8099, 2000 WL 16929, at *5 (S.D.N.Y. Jan. 11, 2000). A Title VII
plaintiff must establish that the discrimination complained of was because
of his or her gender. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1998) (Title VII directed only at discrimination based
on employee's sex) Galdieri-Ambrosini v. National Realty & Development
Corp., 136 F.3d 276, 289 (2d Cir. 1998); Cosgrove v. Sears, Robuck &
Co., 9 F.3d 1033, 1042 (2d Cir. 1993).

Even when considered in aggregate, the facts Ms. Walter pleads do not state a claim that she was discriminated against because of
her gender. Accordingly, the defendant's motion to dismiss the
plaintiff's general claim of gender discrimination should be granted.

2. Sexual Harassment

Ms. Walter next claims that she was subjected to sexual harassment
while employed at Westdeutscher. Sexual harassment under Title VII
includes "unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature," when "such conduct
has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hosfile, or
offensive working environment." Meritor Savings Bank v. Vinson,
477 U.S. 57, 65 (1986)(quoting 29 C.F.R. § 1604.11(a)); see also Mormol
v. Costco. Wholesale Corp., 364 F.3d 54 (2d Cir. 2004). Under both the
NYSHRL and the NYCHRL, federal standards are used to determine hosfile
environment and harassment claims. Walsh v. Covenant House, 244 A.D.2d 214,
215, 664 N.Y.S.2d 282, 283 (1st Dep't 1997). In order to adequately plead
a violation of Title VII and New York Executive Law § 296, Ms. Walter
must state a claim under either a hosfile environment or a quid pro quo
theory. Leibovitz v. New York City Transit Authority, 252 F.3d 179, 188
(2d Cir. 2001); Tomka v. Seller Corp., 66 F.3d 1295, 1304-05 (2d Cir. 1995).
Here, Ms. Walter has not specified under which theory she is bringing her
case. Accordingly, Ms. Walter's sexual harassment allegations will be
considered under both.

a. Hosfile Environment

In order to prevail on a claim that sexual harassment has caused a
hosfile work environment in violation of Title VII, a plaintiff must
establish two elements. First, she must show that her workplace was
permeated with "discriminatory intimidation, ridicule, and insult . . .
that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment." Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotation
marks and citations omitted). Second, the plaintiff must show that a
specific basis exists for imputing the conduct that created the hosfile
environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122
(2d Cir. 2003); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).

To meet the first requirement, a plaintiff must demonstrate "either
that a single incident was extraordinarily severe, or that a series of
incidents were sufficiently continuous and concerted to have altered the
conditions of her working environment." Cruz, 202 F.3d at 570 (internal quotation marks and
citations omitted). The plaintiff must establish that the environment was
"both objectively and subjectively offensive, one that a reasonable
person would find hosfile or abusive, and one that the victim did in fact
perceive to be so." Faraqher v. City of Boca Raton, 524 U.S. 775, 787
(1998) (citation omitted).

In Harris, the Supreme Court set forth a non-exhaustive list of factors
relevant to determining whether a given workplace is permeated with
discrimination so "severe or pervasive" as to support a Title VII claim.
These include: (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether the conduct was physically threatening or
humiliating, or a "mere offensive utterance"; (4) whether the conduct
unreasonably interfered with plaintiff's work; and (5) what psychological
harm, if any, resulted to the plaintiff. Harris, 510 U.S. at 23. In
determining whether a plaintiff has submitted evidence sufficient to
support a finding that a hosfile work environment exists, courts should
consider the totality of the circumstances. See Schwapp v. Town of Avon,
118 F.3d 106, 111 (2d Cir. 1997) (citing Harris, 510 U.S. at 23). Thus,
the factors outlined above must be considered "cumulatively," so that a
court can "obtain a realistic view of the work environment." Id.
(internal quotation marks and citations omitted). This includes evaluating the
"quantity, frequency, and severity" of the incidents. Id. at 110-11.

Ms. Walter offers several facts in support of her claim of a hosfile
work environment. She claims that she was given conflicting or
incomprehensible orders (Compl., ¶ 15); that Mr. Nehls harassed her
about her supposedly expired visa (Compl., ¶ 16); that Mr. Nehls
unjustifiably criticized her work (Compl., ¶ 15); and that on one
occasion he engaged in inappropriate sexual conduct in her presence.
(Compl., ¶ 23).

The majority of the acts of harassment complained of were not of a
sexual nature. Ms. Walter's allegation that she was criticized, her
allegation that she was given conflicting orders, and her assertion that
Mr. Nehls harassed her about her visa are not gender based and not
cognizable in a Title VII claim of sexual harassment. The only allegation
Ms. Walter makes that is sexual in nature is her claim that she observed
Mr. Nehls "rubbing his genitals" in his office. (Compl., ¶ 23). The
issue is thus whether this act is severe enough, without the added weight
of repetition or cumulation with other acts of harassment, to stand alone
as the basis for a harassment claim. "Although a continuing pattern of
hosfile or abusive behavior is ordinarily required to establish a hosfile environment, a single instance can
suffice when it is sufficiently egregious." Ferris v. Delta Air Lines,
Inc., 277 F.3d 128, 136 (2d Cir. 2001); accord Cruz, 202 F.3d at 570;
Torres v. Pisano, 116 F.3d 625, 631 n.4 (2d Cir. 1997). Harassment need
not be severe and pervasive to impose liability; one or the other will
do.

In Roussell v. Harmony Corp., No. Civ. A. 01-0436, 2002 WL 1467873, at
*5 (E.D. La. July 9, 2002), the court found that an employee who
"routinely touched his groin in front of plaintiff and other employees"
approximately five to ten times a day for two months, had engaged in
behavior that was both severe and pervasive enough to create a hosfile
work environment. In contrast, in Montandon v. Farmland Industries,
Inc., 116 F.3d 355, 358 (8th Cir. 1997), the court found that an employee
who had observed a supervisor "grabbing his testicles on two occasions"
could not use this conduct to support his hosfile environment claim.

Here, it is a close question as to whether the act complained of by Ms.
Walter is sufficiently severe to sustain a hosfile environment claim by
itself. But given the plaintiff's minimal pleading burden at this stage,
this incident should be further explored during discovery. It may
ultimately be determined that there was a rational explanation for Mr. Nehls'
behavior. At this stage, however, the hosfile work environment claim
should not be dismissed,

b. Quid Pro Quo

Quid pro quo harassment occurs when a supervisor conditions any terms
of employment upon the employee's submitting to unwelcome sexual
advances. Jin v. Metropolitan Life Insurance Co., 310 F.3d 84, 91 (2d
Cir. 2002). A quid pro quo violation of Title VII is caused by explicit
discriminatory alterations in the terms or conditions of a plaintiff's
employment. Id. Explicit alterations are established when a plaintiff
proves that an action, such as a firing or demotion, resulted from a
refusal to submit to a supervisor's sexual demands, or that "an employer
demanded sexual favors from an employee in return for a job benefit."
Id. (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752
(1998)).

Here, Ms. Walter has not explicitly alleged that Mr. Nehls demanded
sexual favors from her, nor has she claimed that any job benefits were
made contingent upon her submission to his sexual conduct. She did claim
that Mr. Nehls invited her to a social affair in April 2000 in an
"inappropriate manner," and that after her refusal, he began criticizing
her and giving confusing orders. (Compl., 51 14, 15). The defendant claims that because Ms. Walter
"does not allege that she was denied an economic benefit on account of
her gender or because she rejected sexual advances by a co-worker, she
cannot proceed under a quid pro quo theory of sexual harassment." (Def.
Memo, at 9). While Ms. Walter has not specified in what way Mr. Nehls'
invitation was "inappropriate," she has claimed that following her
decision to decline his invitation, he began to treat her differently and
eventually terminated her. Ms. Walter has made "a short and plain
statement of the claim" and has alleged facts upon which relief could be
granted. Her claim thus survives a motion to dismiss. Swierkiewicz, 534
U.S. at 512; Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir. 2002).

C. Discrimination Based on Disability

Ms. Walter next asserts that the defendant discriminated against her on
the basis of disability in violation of the NYSHRL and the NYCHRL.*fn2
Ms. Walter claims that Mr. Nehls' "daily harassment" of her resulted in
"serious health consequences." (Compl., ¶ 24). She asserts that on
one occasion, after returning from sick leave due to "sinusitis,
laryngitis and the flu, . . . Mr. Nehls made a number of negative references about her
health and indicated that it could result in the loss of her job."
(Compl., ¶ 25). Ms. Walter also alleges that during her employment at
Westdeutscher, she began suffering from chest pain that was diagnosed by
a cardiologist as being stress-related. (Compl., ¶¶ 26-28). Ms. Walter
claims that she was terminated because of her disability or perceived
disability. (Compl., ¶¶ 43, 49).

Under New York State and City law, an employer is prohibited from
discharging an individual because of that individual's disability.*fn3
N.Y. Exec. Law § 296; New York Admin. Code § 8-106. The NYSHRL defines
"disability" as

a physical, mental or medical impairment resulting
from anatomical, physiological, genetic or
neurological conditions which prevents the exercise of
a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic
techniques. . . .

To state a prima facie case under the NYSHRL and the NYCHRL, the
plaintiff must establish that "(1) she suffers from a disability as that
term is defined under the statute, and (2) that the disability caused the
behavior for which she was terminated." Guzman v. ARC XVI Inwood, Inc.,
No. 97 Civ. 0031, 1999 WL 178786, at *7 (S.D.N.Y. March 30, 1999) (citing
McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 330 (1994));
see, e.g., Posner v. Marcus & Millichap Corporate Real Estate Services,
180 F. Supp.2d 529, 531-32 (S.D.N.Y. 2002).

Here, the defendant argues that even assuming that Ms. Walter did
indeed suffer a disability at the time of her termination, the Complaint
"does not set forth any allegations which give rise to an inference that
Plaintiff's alleged disability caused the behavior for which she was terminated." (Def.
Memo, at 19). New York courts have held that a plaintiff can show a prima
facie case of disability by either "(a) showing that they were replaced
by a person who did not have their alleged disability; or (b) producing
direct evidence of discriminatory conduct." Delta Air Lines, Inc. v. New
York State Division of Human Rights, 229 A.D.2d 132, 138, 652 N.Y.S.2d 253,
258 (1st Dep't 1996), aff'd, 91 N.Y.2d 65, 666 N.Y.S.2d 1004 (1997). Ms.
Walter has clearly alleged the second of these. She claims that Mr. Nehls
"made negative references about her health and indicated that it could
result in the loss of her job." (Compl., ¶ 25). This comment becomes
particularly salient given the fact that Ms. Walter was indeed terminated
only a month later. (Compl., ¶ 30). It is thus reasonable to infer that
there was a connection between Mr. Nehls' negative comments concerning
Ms. Walter's health and her ultimate termination. Accepting the
allegations in the Complaint as true, it cannot be said that the
plaintiff can prove no set of facts entitling her to relief. See
Swierkiewicz, 534 U.S. at 512. Accordingly, the defendant's motion to
dismiss the plaintiff's claims of discrimination based on disability
should be denied. D. Retaliatory Discharge

Finally, Ms. Walter claims that she was terminated in retaliation for
opposing the defendant's "unlawful employment practices" in violation of
Title VII, the NYSHRL, and the NYCHRL. (Compl., ¶¶ 38, 39, 44, 45, 50,
51). Ms. Walter claims that on October 30, 2000, Mr. Nehls fired her for
reasons related to her visa, but that he also stated that "the real
reason he fired her was because she had complained about him." (Compl.,
¶ 18). She does not specify which complaint Mr. Nehls was referring
to at that time. Additionally, Ms. Walter claims that following this
incident, she called the Westdeutscher headquarters to speak with Mr.
Nehls' supervisors to complain about her termination. (Compl., ¶ 19).
Ms. Walter further alleges that she overheard Mr. Nehls "slandering
her" in response to hearing about her complaint to his supervisors.
(Compl., ¶ 20). Ms. Walter states that in November, 2000, Mr. Nehls
berated her for not "adhering to the proper [Westdeutscher] hierarchies
when filing a complaint." (Compl., ¶ 21). When asked whether he would
forward future complaints to Westdeutscher headquarters, Mr. Nehls
allegedly replied that "complaints would end up in his waste paper
basket." (Compl., ¶ 21). Although Mr. Nehls did not follow through
with his initial threat to terminate Ms. Walter made in 2000, she was ultimately terminated on December 27, 2001.
(Compl., ¶ 30).

Title VII prohibits an employer from retaliating against an employee
who engages in protected activity, specifically, activity in opposition
to an unlawful employment practice. See 42 U.S.C. § 2000e-3(a); see also
Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001).*fn5 In order
to establish a prima facie case of retaliatory discharge under Title
VII, a plaintiff must show that (1) she was engaged in protected
activity; (2) the defendant was aware of that activity; (3) she was
terminated or suspended; and (4) there was a causal connection between
the protected activity and the termination or suspension. McMenemy v.
City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001); Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).

For purposes of this motion, Westdeutscher has assumed that Ms. Walter
was engaged in protected activity under Title VII. (Def. Memo. at 24).
The defendant argues, however, that "Plaintiff will not be able to prove
a causal connection between the purportedly protected activity and the
termination of her employment." (Def. Memo. at 24). Because the time
between the alleged complaint about Mr. Nehls and Ms. Walter's
termination was over a year, the defendant asserts that she will be
unable to demonstrate the existence of a causal connection. (Def. Memo.
at 25).

A causal connection between protected activity under Title VII and
adverse employment action can be shown through indirect evidence, such as
close proximity in time between the protected activity and the adverse
employment action, or through direct evidence of retaliatory animus
directed against the plaintiff. Little v. National Broadcasting Co.,
210 F. Supp.2d 330, 384-85 (S.D.N.Y. 2002); Sykes v. Mt. Sinai Medical
Center, 937 F. Supp. 270, 276 (S.D.N.Y. 1996). The temporal proximity
between the statutorily protected activity and the adverse employment
action must be "very close" to establish the causal connection required to support a claim for retaliation in violation of Title VII. Little, 210
F. Supp.2d at 384-85.

The defendant argues that because a year passed between Ms. Walter's
complaint about Mr. Nehls and her termination, there can be no indirect
evidence of retaliation. Courts have found that a time lapse of one year
is too great to support a finding of indirect causation. See Nicastro v.
Runyon, 60 F. Supp.2d 181, 185 (S.D.N.Y. 1999) ("Claims of retaliation
are routinely dismissed when as few as three months elapse between the
protected . . . activity and alleged act of retaliation."); Castro, 964
F. Supp. at 729 (lapse of one year too long to support causal
connection); Zenni v. Hard Rock Cafe International, Inc., 903 F. Supp. 644,
656 (S.D.N.Y. 1995) (exercise of Title VII rights not "closely followed"
by adverse employment action where one year elapsed between complaint and
alleged retaliatory conduct).

Although the time lapse between Ms. Walter's complaint about Mr. Nehls
and her termination would be too great to support an indirect finding of
causation, she has alleged facts sufficient to support a direct causal
connection. Ms. Walter claims that after Mr. Nehls initially terminated
her in 2000, he told her that he was firing her in retaliation for
complaining about him. (Compl., ¶ 18). Although Ms. Walter does not claim that Mr. Nehls made
this same comment after he fired her for a second time, the fact that he
had previously made such a statement would be evidence of retaliatory
animus. It is difficult to imagine evidence of retaliation more direct
than a supervisor telling an employee that her complaints were the reason
for her termination. Given the plaintiff's minimal pleading requirements
at this stage, she has sufficiently alleged facts that would support a
causal connection between her complaints about Mr. Nehls and her
termination. Accordingly, the defendant's motion to dismiss the
retaliation claims should be denied.

Conclusion

For the reasons set forth above, I recommend that the defendant's
motion to dismiss be granted in relation to the plaintiff's claims of
gender discrimination and denied in relation to the remainder of the
plaintiff's claims, including her claim of quid pro quo harassment,
discrimination based on disability and retaliatory discharge. Pursuant to
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days to file
written objections to this Report and Recommendation. Such objections
shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Lewis A. Kaplan,
Room 1310, and to the undersigned, Room 1960, 500 Pearl Street, New York,
New York 10007. Failure to file timely objections will preclude appellate
review.

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